Dunn v Westruss Manufacturing Pty Ltd
[2024] NSWPICMP 66
•12 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Dunn v Westruss Manufacturing Pty Ltd [2024] NSWPICMP 66 |
| APPELLANT: | Sydney Kevin George Dunn |
| RESPONDENT: | Westruss Manufacturing Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 12 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; assessment under the Psychiatric Impairment Rating Scale table for social and recreational activities; Ferguson v State of New South Wales considered; Medical Assessor considered reasons for restrictions on activities; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 November 2023 Sydney Kevin George Dunn lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 October 2023.
Mr Dunn relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the MAC contains a demonstrable error. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Dunn was employed by Westruss Manufacturing Pty Limited (Westruss) as a crane operator. He suffered a physical injury and a psychological injury on 24 October 2019 when he was required to unload a truck without the assistance of a dogman and was struck by part of the load.
In respect of the psychological injury, the Medical Assessor assessed 7% whole person impairment (WPI) using the Psychiatric Impairment Rating Scale (PIRS), placing Mr Dunn in class 2 for self care and personal hygiene, social and recreational activities, travel and social functioning. The Medical Assessor assessed him in class 3 for concentration, persistence and pace and for employability. The Medical Assessor added 1% for the effect of treatment.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Mr Dunn to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Dunn submitted that the assessment made by the Medical Assessor with respect to social and recreational activities is against the weight of the evidence and the Medical Assessor’s own history. Mr Dunn said that the sum total of social and recreational activity recorded was to go to the local club with his partner “maybe once a month” and that the extent of engagement is to “play a couple of tickets of Keno”. He noted that he said in his statement that he does not go out often and that crowds cause him to panic. He no longer rides his motorcycle with friends or plays lawn bowls. Mr Dunn said that he should be assessed in class 3 for a moderate impairment.
In reply, Westruss submitted that the Medical Assessor set out a more detailed history than that to which Mr Dunn referred, noting that the cause for the alteration of his social activities was multifactorial and unrelated to his primary psychiatric injury, submitting it was related:
“in the case of dancing, to his wife’s medical condition, in the case of lawn bowling, golf, motorcycle riding and leatherwork, to the effects of his physical injuries and in the case of attending the club to play Keno, the need to prioritise other areas of expenditure given budgetary constraints following his cessation of work with Lawns R Us.
In each instance, the respondent submits it could not be rationally said that the primary psychiatric injury which is the subject of the Medical Assessor’s deliberations was the cause of any alteration in the social and recreational activities undertaken by the appellant and the respondent further notes that many social activities appear to be pursued notwithstanding the accepted injury which include volunteer work at the local Rural Fire Service, attendances at his church, periodic attendances upon his local club to play Keno when finances permit and also daily walks during which he would play Pokémon Go, often in the company of his wife on her mobility scooter.”
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Queanbeyan Racing Club Ltd v Burton,[1] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[1] [2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[2] [2006] NSWCA 284.
The MAC
The Medical Assessor set out a history of the injury and Mr Dunn’s present symptoms, including that his anxiety symptoms are triggered by large crowds though he can tolerate small social gatherings. The Medical Assessor noted that Mr Dunn’s partner suffers a chronic respiratory disease. He recorded:
“He normally liked to play sports and used to compete in lawn bowling and attended several Commonwealth Games. He said that when he tried to play he could not do it, because of right body pain and he could not bend down, and it is a very long distance to walk from one end of the lawn to the other end and it takes him a whole day to just finish one game, so he could not continue.
Mr Dunn normally liked to ride a motorcycle, a 500cc Suzuki road bike, but he said it has become too jarring on his hands and therefore he has not ridden for about three years. He also liked to play golf, but he said he cannot turn his hip when he has to swing, and because of his neck and back pain, so he has stopped.
He can enjoy playing Pokémon Go. He said that he plays every day, maybe for half an hour.
He would walk about 2km each way, so altogether around 5km per day. He would do it by himself or his wife would come on her mobility scooter, they walk around Orange. He catches Pokémons on the app.
He does not normally read books or magazines, only the Bible. He normally went to church every second week. He still goes to church sometimes.
He has been volunteering at the Rural Fire Service for five years, however, he is no longer operational due to his physical injuries. He still goes once a month for an hour and will go to help clean up, do a bit of sweeping, and show some of the younger firefighters how to use the pump and the hose properly. He said he wants to do more but physically he cannot manage more. He goes to the bushfire engagement events with the community, such as handing out flyers. Recently he did this for three hours as there is another event coming up, and he will show the schoolchildren all the equipment and how to use the hose.
When Mr Dunn was working for Lawns Are Us, he said he had a couple of friends and they regularly socialised. For example, he would go with one of his friends to the club and play Keno, but since he stopped working five months ago, he stopped going with them. He still goes to the club maybe once a month with his wife to have a meal and play a couple of tickets of Keno, but he said that this is only when they can afford to go.
He avoids watching the news and TV, and said there is too much depressive news about street racing and people getting killed.
He was doing leather-making with a friend. The friend made a saddle, but Mr Dunn said it took him a long time just to make a pocketknife holder, it was very hard on his hands and so he does not do it anymore.”
The Medical Assessor diagnosed post-traumatic stress disorder with depressive symptoms as did Dr George, qualified for Mr Dunn, and Dr Snowden, who saw him on behalf of Westruss.
Comparing his assessment to those made by Dr George, the Medical Assessor said:
“In terms of social and recreation, Dr George rated at 3 and Dr Snowden rated a 1. Dr George noted that Mr Dunn does not ride a motorcycle, he sees some friends weekly, he cannot do much walking and noted that his pain is aggravated when playing bowls, but he will meet friends at the club. In my assessment, I noted that he does go to social and recreational activities, for example, he would eat out at the club with his wife and play keno. I noted his physical injuries affect some recreational activities and his physical injuries and pain are not assessable in the PIRS. There is a reduction in motivation due to depressive symptoms but he still goes to social and recreational activities regularly, and is actively engaged, he does not need a support person or prompting, and therefore my view is that a rating of 2 is more appropriate.”
In the PIRS rating form, the Medical Assessor supported his assessment by saying:
“He reported that he occasionally goes out to recreational activities (e.g. eat out and play keno at the club with his wife). He does not need a support person in recreational activities and he is actively involved. He goes out to play Pokémon Go by himself or with his wife.”
Medical evidence
Mr Dunn suffered a significant physical injury in addition to a primary psychiatric injury. He was airlifted to Liverpool Hospital. He told Dr George that he was admitted for three weeks but the discharge summary and the notes of his general practitioner suggest it was for less than one week. His truck driving licence was revoked due to his physical injuries.
Dr George noted that Mr Dunn is treated by Dr Taylor, a pain specialist and has seen a psychiatrist, Dr Singer. There are no reports from Dr Singer in the file. Dr Snowden recorded that Mr Dunn had seen Dr Singer at the same clinic as Dr Taylor, the Northern Pain Centre. Mr Dunn continues to take significant medication for pain.
Dr George assessed Mr Dunn in class 3 when he examined him on 15 February 2022, more than 18 months before the Medical Assessor’s examination. Like the Medical Assessor, he noted that Mr Dunn attends church and he had the additional history that “if he does not attend a church service he would get together with his friends from church once a week”. Dr George did not set out a detailed history of Mr Dunn’s activities but his reasons for assessing Mr Dunn in class 3 were:
“He used to enjoy riding a motorbike, but does not do this anymore. He does keep some telephone contact with a few friends. He said he will see his church friends weekly. He indicated that he cannot do much walking. He said that he is far more socially withdrawn. He said everything that he tends to do takes much longer. Generally, social and recreational activities have been greatly curtailed.”
Consideration
The opening words of paragraph 11.1 reinforce the Medical Assessor’s task. It begins “[b]ehavioural consequences of psychiatric disorder are assessed on six scales…” The Medical Assessor was required to consider the impact on Mr Dunn’s activity of his psychiatric injury.
The assessment of social and recreational activities looks to a worker’s participation in those activities.[3] A recreational activity can be undertaken alone, as many hobbies are.
[3] Ballas v Department of Education [2020] NSWCA 86 at [100].
The examples for assessment in class 2 are:
“Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).”
We do not agree with Mr Dunn’s submission that the Medical Assessor made an assessment in class 2 for social and recreational activities based only on his monthly visits to the club to play Keno. The Medical Assessor had regard to a range of activities which Mr Dunn had participated in and considered why he was no longer undertaking them. Mr Dunn told the Medical Assessor that he was unable to play lawn bowls or ride his motorcycle because of pain. He is involved with the Rural Fire Service but is no longer operational because of his physical injuries. He gave up leatherwork because of pain in his hands.
The Medical Assessor noted that Mr Dunn plays Pokémon Go every day, either with his partner or alone. He continues to attend the Rural Fire Service once a month where he interacts with others and he goes to community bushfire engagement events. He stopped going to the club with friends when he stopped working in his subsequent, part time employment and now goes with his partner only when they can afford to go. There is nothing in the file to suggest that Mr Dunn requires a support person to go out.
In Ferguson v State of New South Wales[4] Campbell J said:
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”
[4] [2017] NSWSC 887 at [25].
The MAC shows that the Medical Assessor was aware of the relevant information from the file and the detail in the MAC shows that the he explored Mr Dunn’s activities with him in detail, teasing out the reasons why Mr Dunn had ceased activities. His reasoning to assessment in class 2 was clear. He explained why his assessment differed from that of Dr George. The Medical Assessor’s categorisation of Mr Dunn’s impairment of social and recreational activities as mild was not glaringly improbable and does not disclose error.
For these reasons, we have determined that the MAC issued on 9 October 2023 should be confirmed.
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